Inference from Silence and Other Conduct

Question 1

A trial judge’s summing-up conventionally falls into two parts:

Answer 1

A direction on the law

A summary of the evidence

Question 2

TRUE or FALSE. The Court of Appeal discourages courts from commencing a summing-up, or addressing an important aspect of one, at a late hour or just before the weekend.

Answer 2

TRUE.

Question 3

A client may refuse to give oral evidence or to produce documents relating to what two types of confidential communication?

Answer 3

Communications between client and legal adviser for dominant purpose of enabling:

• C to obtain legal advice about any matter, whether or not litigation was contemplated at the time. (LEGAL ADVICE PRIVILEGE)
• Legal adviser to advise or act in relation to litigation pending or in the contemplation of the client (LITIGATION PRIVILEGE)

Question 4

TRUE of FALSE. Privilege does not cover items enclosed with communication and brought into existence in connection with the giving or contemplation of legal proceedings and legal advice.

Answer 4

FALSE. It does.

Question 5

Who bears the evidential burden of establishing that a document etc is privileged?

Answer 5

The party claiming the privilege. A mere assertion of privilege is not determinative.

Question 6

Can a court inspect relevant documents when determining if there is a claim to privilege to such evidence?

Answer 6

Yes, but only as a last resort. Even then, should only do so if there is credible evidence that those claiming privilege have misunderstood their duty / not to be trusted with the decision / no reasonably practical alternative (West London Pipeline v Total UK Ltd)

Question 7

TRUE or FALSe. In order to establish legal advice privilege, it needs to be shown that the purpose of obtaining/giving legal advice was the dominant purpose.

Answer 7

TRUE (R v Cival Aviation Authority)

Question 8

TRUE or FALSE. Documents emanating from independent third parties and passed to a lawyer for the purposes of advice ARE privileged as legal advice privilege.

Answer 8

FALSE.

Question 9

TRUE or FALSE. If the dominant purpose of a series of communications is to obtain the commercial views of a non-lawyer involved, it will be privileged if a subsidiary purpose is to obtain legal advice from the lawyer.

Answer 9

FALSE. If legal advice is not the dominant purpose, not privileged. (R v Civil Aviation Authority)

Question 10

TRUE or FALSE. For determining privilege of communications, multi-addressee communications should be considered as separate bilateral communications between sender and recipent, rather than as a whole.

Answer 10

TRUE. (CIvil Aviation Authority)

Question 11

TRUE or FALSE. A communication will be privileged where there is a realistic possibility that it might disclose legal advice.

Answer 11

TRUE (Civil Aviation Authority)

Question 12

TRUE or FALSE. The presence of a lawyer at a meeting is enough to render it subject to privilege.

Answer 12

FALSE. Once again, what was the dominant purpose of the meeting?

particular instances of seeking legal advice during the meeting may be privileged.

Question 13

TRUE or FALSE. A lawyer’s working papers are protected by privilege only if they would betray the tenor of the legal advice given to the client.

Answer 13

TRUE. (Director of the SFO v Eurasian Natural Resources Corporation).

Question 14

Does a legal adviser have greater privilege than their client at common law?

How does this explain the outcome in Peterborough Justices?

Answer 14

No.

In that case, a client sent a forged document to their solicitor for the purposes of obtaining legal advice. It was seized. The document was held not to be privileged in the hands of the solicitor, since it would have been open to seizure in the hands of the client.

Question 15

PACE section 10(2) reads:

How was this interpreted in ex parte Francis [1989]?

Answer 15

“Items held with the intention of furthering criminal purpose are not items subject to legal privilege.”

This was not intended to restrict Cox to cases where the legal adviser had the intention of furthering a criminal purpose. The intention being referred to could be that of the person holding the document, OR ANY OTHER PERSON.

Thus, if a solicitor innocently holds the documents but the client’s friend itends to use them to launder proceeds of drug trafficking, there was NO PRIVILEGE.

Question 16

What did ex parte Dumbleton rule on the interpretation of section 10(1) PACE?

Answer 16

The phrase “made in conection with legal proceedings” means lawfully made, so does not extend to forged documents or copies thereof. Thus, forged documents not covered anyway!

Question 17

Where a lie told by D is relied on as evidence to support guilt, rather than just to comment on credibility, a threefold Lucas direction should be given to the jury:

Answer 17

(a) The lie must be deliberate and relate to a material issue
(b) They must be satisfied that there is no innocent motive for the lie
(c) The lie must be established by evidence other than that of the witness who is to be corroborated

Question 18

Must a Lucas direction always be given where a lie told by D is relied on as evidence to support guilt?

Answer 18

Goodway held NO. For example, if the rejection of the explanation given by D necessarily leaves the jury with no choice but to convict as a matter of logic.

Furthermore, Saunders held that a judge does not need to do so where the accused has offered an explanation for their lies and the judge dealt with that explanation fairly in the summing-up.

Question 19

Burge held that a Lucas direction is usually required in four situations:

Answer 19

1. Where the defence relies on an alibi;
2. Where the judge considers it desirable to suggest that the jury should look for support of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies (allegedly) told by D
3. Where P seeks to show that something said in relation to a separate issue was a lie, and rely on that lie as evidence of guilt of the relevant charge
4. Where P has not done as above, but the judge reasonably envisages that there is a real danver that the jury may do so.

Question 20

The Court of Appeal in Burge held that a direction to the jury will normally suffice if two points are made:

The Court also stressed that the direction need arises only in cases where the prosecution, or the judge envisages that the jury may say:

Answer 20

1. The lie must be admitted or proved BRD
2. The mere fact of the lie is not itself evidence of guilty since D may lie for an innocent reason. The jury must be sure they are not lying for an innocent reason.

“The lie is evidence against the accused.” (implied admission of guilt)

Question 21

Is a Goodway direction required where the jury may reject the evidence of an accused about a central issue?

Answer 21

No; that situation is covered by the general direction on the burden and standard of proof. (Hill [1996])

Question 22

What inferences does CJPO s34-38 allow to be drawn?

Answer 22

Adverse inferences from the exercise of D’s primary right to silence.

Question 23

Condron v UK held that:

Answer 23

The right to silence cannot prevent silence being taken into account when assessing the persuasiveness of prosecution evidence, but fair procedure requires ‘particular caution’ on the part of a domestic court before relying on D’s silence.

Question 24

Section 34 CJPO addresses adverse inferences from:

Answer 24

Withholding when questioned matters that are subsequently introduced in support of a defence at trial.

Question 25

Under s34(2) CJPO, where does the rule apply?

Answer 25

A judge, in deciding whether to grant an application under para 2, schedule 3 CDA 1998 (application to dismiss charges);

The court, in determining whether there is a case to answer; and

The court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.

Question 26

Under s34(2A) CJPO, when do s34(1) and (2) not apply?

Answer 26

Where D was at an authorised place of detention at the time of the failure, but he was not allowed an opportunity to consult a solicitor prior to being questioned, charged or informed as mentioned in ss(1) above.

Question 27

What is the object of s34 CJPO>

Answer 27

To deter late fabrication and to encourage early disclosure of genuine defences.

Question 28

If D discloses the nature of their deence but fails to mention a particular fact relied upon at trial, MUST the court apply section 34?

Answer 28

No, there is a discretion to do so.

Question 29

TRUE or FALSE. The mere fact that a trial judge leaves a jury with the option of drawing an adverse inference from silence in interview is not incompatible with the requirement of a fair trial.

Answer 29

TRUE.

Question 30

The Court in Murray v UK held that the lawful exercise of a power to delay access to legal advice could…

Answer 30

Be sufficient to deprive the accused of a fair procedure under Article 6, where D is at risk of adverse inferences under the statutory scheme.

Question 31

Section 38(3) CJPO says that a person shall not have what three things happen, solely on an inference drawn from a failure/refusal to speak or give info?

Answer 31

His proceedings will not be transferred to Crown Court for trial.

He will not a case to answer solely on that basis.

He will not be convicted of an offence solely on that basis

Question 32

True or false. Section 34 CJPO does not apply where there is no attempt to put forward at trial some previously undisclosed fact.

Answer 32

True. To give a s34 direction in a case where D does nothing more than put forward a bare denial would be tantamount to directing that guilty may be inferred directly from silence.

Question 33

Can a fact relied on to bring a s34 direction be a fact that is established from a witness other than the accused?

Answer 33

Yes (Bowers [1988])

Webber [2004] said that a fact is relied on where the accused gives or adduces evidence, OR where counsel puts a specific and positive case to prosecution witnesses instead of just probing their case.

Question 34

If the prosecution are unable to establish that the accused has failed to mention a fact, should the jury still be directed to draw an inference?

Answer 34

No. They should be directed to draw no inference. (B (MT) [2000])

Question 35

Do inconsistencies between a prepared statement and defence at trial necessarily amount to a reliance on unmentioned facts?

Answer 35

No. For example, could be a previous lie rather than the foundation for a direction under section 34.

Question 36

Inferences before a suspect is charged under CJPO section 34 may not be drawn except…

Answer 36

‘on being questioned under caution by a constable.’

Question 37

TRUE or FALSE: If no questions under caution have been put to the defendant, section 34 cannot apply because the statutory language cannot be ignored.

Answer 37

TRUE. Johnson [2005]

Question 38

Must explanations given by D for previous non-disclosure be considered when deciding what inferences should be drawn?

Answer 38

Yes, see Webber [2004]

Question 39

What is the relevance of if D genuinely believed that he had mentioned a fact during interview, with regards to adverse inferences?

Answer 39

His state of mind at the interview would not be that of a guilty person withholding information; any direction given should reflect this.

Question 40

Does the giving of legal advice to remain silent preclude the drawing of inferences?

Answer 40

No - see Condron [1997]. It all depends on the view the jury take of the reason advanced by D as to whether the silence can only sensibly be attributed to the accused having no answer, or none that would stand up to questioning.

Question 41

Does genuine reliance by a defendant on his solicitor’s advice to remain silent preclude adverse comment inference?

Answer 41

No - see Hoare [2004].

“D’s belief in his entitlement may be genuine, but it does not follow that his reason for exercising it is…”

Question 42

Can inference be drawn where the accused may have had a good defence but chose to rely on legal advice to remain silent?

Can inference be drawn where the jury are sure the accused just hid behind the legal advice to remain silent?

Answer 42

No!

Yes!

Question 43

Is the giving of evidence at a voir dire (as to the reasons for legal advice for silence) enough to waive privilege at trial?

Answer 43

Yes: the accused cannot have his cake and eat it (Bowden [1999]).

Question 44

Common inferences?

Answer 44

That the facts were invented post-interview

That the defendant did not want his version exposed to scrutiny during interview

D faced a choice of hard silence or lying/self-incrimination by telling the truth.

Question 45

Must a judge direct as to the nature of the inference to be drawn under s34?

Answer 45

Yes. (Petkar [2003])

Question 46

What are the key elements of the judge’s direction re s34?

Answer 46

A reminder that the accused was cautioned (and what that entails)

Identification of the facts which are now being relied on by D

Reasons for failing to mention the facts

Conclusions it is suggested might be drawn

An instruction to consider whether the prosecution case at the time of the interview clearly called for an answer (and consider D’s explanation)

Only draw adverse inference if fair and proper to do so. Do not convicted wholly or mainly on this basis.

Question 47

What is the three-stage test for applying s34 in Mags? (T v DPP [2007])

Answer 47

Has D relied on a fact which he could reasonably have been expected to mention in his interview, but did not?

What is his reasons?

If that is unreasonable, is the proper inference to be drawn that he is guilty?

Question 48

Are dual directions for concealing facts/telling positive lies possible?

Answer 48

Yes. See Turner [2003].

Question 49

Neither section 36 nor 37 CJPO permit an inference to be drawn unless four conditions are satisfied:

Answer 49

The accused is arrested

A constable reasonably believes that X may be attributable to their participation in a crime

The constable informs D of this belief and requests and explanation

The constable, in ordinary language, tells D the effect of a failure to comply

Question 50

Given that questioning should not occur other than at an interview at a police station, what is the correct procedure for requesting information in relation to s36/36 CJPO?

Answer 50

The tendering of such information should be the exception, not the norm.

If it is made, and given silence, this silence must be put to the suspect in a subsequent interview.

Question 51

TRUE or FALSE. The strength of an inference under s36/37 varies depending on the suspicious nature of the circumstances.

Answer 51

TRUE.

Question 52

Is a defendant guilty of contempt of court by failing to give evidence on his own behalf?

Answer 52

No - see section 35(4) CJPO.

Question 53

Does the judge have a wide discretion under section 35(1)(b)? (preventing adverse inference on basis of D’s health)

Answer 53

Yes - see Friend and Burnett.

Question 54

Must the prosecution establish a prima facie case before any question of the accused testifying is raised?

Answer 54

Yes.

Question 55

Where the accused gives a prepared statement at the relevant time in which certain facts are set forth, can it be said that there has been a failure to mention those facts?

Answer 55

No.

Question 56

TRUE or FALSE. Inconsistencies between a prepared statement and D’s evidence can constitute previous lies, rather than the foundation for a s.34 direction.

Answer 56

TRUE.

Question 57

What does the Friend case tell us about disapplying section 35 inference?

Answer 57

It is a high bar to disapply. An IQ of 64 was not enough!

Question 58

TRUE or FALSE. The court must satisfy itself that Defendants who have not indicated that they intend to give evidence understand the consequences of failing to do so.

Answer 58

TRUE.

Question 59

What does Cowan tells us about section 35 inferneces?

Answer 59

Inferences cannot be drawn unless the jury decide that the silence can only sensibly be attributed to the accused having no answer, or none that would stand up in XX.